that may be awarded is limited–the so-called "cap". The cap was increased from 1 July 2023 in accordance with s 35(3) to the sum of $459,000, with the applicable cap being that in force at the time of judgment (New South Wales Government Gazette No 250 (9 June 2023) (at 15)). Two further matters should be noted about the cap: first, the cap is not to be treated as establishing an award for a worst-case scenario and then mandating the scaling of damages downward from that range; and secondly, if the Court determines that an award of aggravated damages is warranted, the cap is not applicable.
978 Unsurprisingly, as to the general principles applied when calculating damages, including when aggravated damages may be awarded, there was common ground. The three purposes of an award are: first, consolation for the personal distress and hurt caused by the publication; secondly, reparation for the harm done to the person's reputation; and thirdly, vindication of reputation. The assessment is an intuitive, evaluative process conducted "at large", but subject to the provisions of Pt 4, Div 3 of the Defamation Act.
979 I discussed the relationship between the three purposes of damages and the relationship between damage to reputation and vindication in Palmer v McGowan (No 5) [2022] FCA 893; (2022) 404 ALR 621 (at 726–727 [497]–[498]), where I noted that:
[497] … the relationship between the three purposes of damage, particularly damage to reputation and vindication, ought not to be forgotten. As Windeyer J explained in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 (at 150):
It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways — as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.
[498] Chief Justice Mason and Justices Deane, Dawson and Gaudron echoed this feature of damages in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 (at 60), when their Honours said that the purposes of an award of damages "overlap considerably in reality and ensure that 'the amount of a verdict is the product of a mixture of inextricable considerations'" …
M.3Three Particular Issues as to Ordinary Compensatory Damages
980 But having identified these uncontroversial principles, and leaving aside aggravated damages (which I will deal with separately below in Section M.6), there are three somewhat connected aspects of this damages assessment that emerged in submissions meriting separate
